Mercado v Iannelli Constr. Co., Inc.

Mercado v Iannelli Constr. Co., Inc. 2007 NY Slip Op 08007 [44 AD3d 550] October 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Daniel Mercado et al., Respondents,
v
Iannelli Construction Co., Inc., Appellant, et al., Defendants.

—[*1] Feinstein & Nisnewitz, P.C., Bayside (Craig M. Nisnewitz of counsel), for appellant.

Barnes, Iaccarino, Virginia, Ambinder & Shepherd, PLLC, New York (LaDonna M. Lusher of counsel), for respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered May 7, 2007, which denied the motion by defendant Iannelli Construction for summary judgment dismissing the amended complaint as against it, unanimously affirmed, with costs.

Iannelli has already acknowledged liability, and the only part of the action that remains unresolved concerns the amount of damages to which each of the class action plaintiffs is entitled. In that connection, the question of damages has been referred for consideration by a Judicial Hearing Officer (JHO) to hear and report with recommendations. Although Iannelli contends that plaintiffs were required to specify both their trade classification and the exact dates of their employment in their respective affidavits, and that the purported lack of such a description renders those affidavits fatally defective, the court's order merely commanded each of the class members to include in his affidavit a "brief description of work performed" and the "duration of employment." Insofar as Iannelli believes that such mandate might not always have been complied with, it should bring the matter to the attention of the JHO.

We have considered Iannelli's remaining arguments, including plaintiffs' purported [*2]failure to furnish a counterstatement of material facts under rule 19-a of the Rules of Practice for the Commercial Division (22 NYCRR 202.70 [g]), and find them unavailing. Concur—Tom, J.P., Saxe, Nardelli, Sweeny and Catterson, JJ.